Young v. Olsen

----ooOoo----

Robert K. Young
and Wynn P. Young,
Plaintiffs and Appellants,

v.

Edwin Donald Olsen; Jay Donald Olsen;
Scott Douglas Olsen;Larry Patterson;
and Patterson Construction, Inc.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990343-CA

F I L E D
June 29, 2000
  2000 UT App 197 -----

Sixth District, Manti Department
The Honorable David Mower

Attorneys:
Douglas L. Neeley, Ephraim, for Appellants
Karen M. Siirola, Lehi, and Ronald G. Russell, Salt Lake City, for Appellees

-----

Before Judges Jackson, Bench, and Orme.

ORME, Judge:

The trial court refused to require specific performance of an oral agreement to buy approximately ten acres of real property. The trial court, after finding the right to enforce the original contract had been waived, stated:

There was testimony which, if believed, would lead to the conclusion that the Youngs and [Olsens] made another separate agreement, the terms of which were as follows. Youngs could withdraw the money being held by the escrow agent and return it to the bank in order to reduce the amount of interest they were paying. In the meantime, [Olsens] would clear the liens and then the sale would close. The evidence regarding this "agreement" was conflicting. Even if believed, the "agreement" is too vague and open-ended to be enforceable.

We see no error in the trial court's conclusion that Youngs' withdrawal of their purchase money from escrow, without some express agreement to the contrary, would signal their abandonment of the contract or a waiver of their rights thereunder. Even if we were to assume that the trial court would have found there was a subsequent agreement which allowed Youngs to withdraw their money from escrow pending Olsens clearing their title--a question which the court left open in its memorandum decision--and even if we were to assume the trial court erred in holding the oral agreement was not sufficiently clear to be enforceable, we still could not reverse the trial court and order specific performance of the contract.

Utah Code Ann. § 25-5-3 (1998) provides: "Every contract for . . . the sale, of any lands . . . shall be void unless the contract, or some note or memorandum thereof, is in writing subscribed by the party by whom the . . . sale is to be made[.]" The rule with respect to contract modifications--which necessarily would apply to Youngs' contention that the original contract was modified by a subsequent agreement permitting withdrawal of the funds in escrow, extending the time for payment, and conditioning payment on Olsens clearing the clouds on title--we have stated that "[g]enerally, if an original agreement was required to comply with the statute of frauds, any material modification of that agreement must also conform to the statute of frauds." Holt v. Katsanevas, 854 P.2d 575, 579 (Utah Ct. App. 1993) (citing Allen v. Kingdon, 723 P.2d 394, 396-97 (Utah 1986)).

While the trial court found the statute of frauds was satisfied as regards the original contract, it is undisputed that there was no writing containing the essential terms of any subsequent agreement. This may well have been the flaw the trial court had in mind in referring to the alleged modification as being "vague." Even if not, however, we can affirm the trial court on any proper ground, even a ground not relied on by the trial court. See In re M.V., 1999 UT App 104,¶11, 977 P.2d 494.

As to Youngs' other issue, "[w]hile plaintiffs have a right to have their claim heard by the district court, they have no protectable interest in the continued exercise of jurisdiction by a particular judge." Hampton v. Chicago, 643 F.2d 478, 479 (7th Cir. 1981).

Affirmed.
 
 
 
 

______________________________
Gregory K Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
Russell W. Bench, Judge